Everything is espionage: Things I learned researching Assange

(espissange? asspionage?)

Who is this Julian Assange guy? Is he good or bad? Did he do espionage? Why is the US so obsessed with getting its hands on him?

At dynomight.net we don’t like to answer questions. Instead, we prefer to replace them with more abstract questions that we also don’t answer.

Pop quiz

First up though—in which of the following scenarios would you be doing espionage?

1. You work for the CIA. You’re a sweaty/greedy type and decide you want a Bugatti so you sell a list of CIA spies to Russia.

2. You work for the CIA. You decide the US is an evil empire so you give a list of CIA spies to Russia for free.

3. You work for the CIA. At a cafe, a barista is mean to you and in your grief you forget a list of CIA spies on a table. Russian agents later pick it up.

4. You work for the CIA. You find some documents that prove the CIA is doing illegal stuff and give them to the New York Times.

5. You work for the New York Times. You give a friend at the CIA some tips on how to steal some documents that prove the CIA is doing illegal stuff. The documents also contain a list of CIA spies, but whatever, you publish them anyway.

6. You work for the New York Time. Unprompted by you, a friend at the CIA gives you some documents that prove the CIA is doing illegal stuff. There’s also a list of CIA spies, but whatever, you publish them anyway.

7. You work for the New York Times. Unprompted by you, a friend at the CIA gives you documents that prove the CIA is doing illegal stuff. You redact any sensitive information and publish them.

8. You have a blog. One day, you’re messing around with some publicly available datasets and realize that they prove the CIA is doing illegal stuff. You publish your findings.

9. You have a blog. You don’t live in the US. You’re not political. One day, you get interested in, like, how much US natural gas production depends on machine tools imported from China, so you do some research and publish a post on that.

What is espionage?

You can take three legal views about Assange.

1. He was a journalist and did nothing illegal.

2. He did hacking or conspiracy or something, but not espionage.

3. He did espionage.

Which is right? When I started looking into this, I expected the answer to be found in an examination of what Assange did. And, sure, that matters. But I quickly learned that I had no idea how the law actually works, and the reality is really weird. So let’s start there.

In US law, conspiracy is defined very broadly.

Say you and I decide to murder Alice. We agree that you’ll fill up your car with petrol and then we’ll go murder her. But when you get back, we remember that we love Alice and we take her out for dinner instead.

Well, good news! We’re both still guilty of conspiracy. Even though we didn’t do anything else illegal, conspiracy itself is still a crime. We conspired (“hey let’s murder Alice; OK cool”) and you took some action (getting petrol) and that’s all that’s required. Sound strange? Usually murder would be a state crime, and each state defines conspiracy slightly differently. But here’s the federal conspiracy statute (emphasis mine):

If two or more persons conspire […] to commit any offense against the United States […] and one or more of such persons do any act to effect the object of the conspiracy, each shall be […] imprisoned not more than five years

A lot of people seem to struggle to understand this, simply because it’s so strange. But that’s really how the law works—you “conspire” and then one person does some “overt act” and then you’re guilty. Prosecutors understand this very well and love charging people with conspiracy because it allows them to convict people even when they can’t prove anyone actually did any (other) crime.

(Incidentally, if you just ask me nicely to commit a crime, that would be solicitation rather than conspiracy. For reasons I don’t understand, no one ever talks about the possibility that Assange could be guilty of solicitation.)

In US law, espionage is defined very extremely very broadly.

When I hear “espionage”, I picture black turtlenecks and nuclear codes and exploding cigars. Is that what the law says?

Well, if you try to read the Espionage Act, it feels like it was deliberately written to be unreadable and unquotable. It’s insanely repetitive and annoying. So let me paraphrase:

Whoever does basically anything to obtain or communicate basically any information that could be harmful to the national defense of the United States shall be imprisoned for not more than 10 years.

I know this sounds crazy. If you have any doubt, please read for yourself. Note that classified information is never mentioned, as the act predates the classification system by decades. Also note that there is no mention of “spying” or “journalists” or “whistleblowers”. In fact, there’s no mention of “espionage”—it should have been called the Imprisoning People for Obtaining or Communicating Information Related to National Defense Act.

How the Espionage Act was used has varied throughout time.

The Espionage Act was originally passed in 1917, basically so that President Wilson could throw anyone who opposed World War I in prison. He liked this power very much and used it to jail many people, sometimes for little more than saying they opposed the US entering the war or the use of the draft.

After the war, people quickly agreed this was an overreach. The most extreme “sedition” provisions of the law were repealed and almost everyone who had been imprisoned under them was pardoned.

There wasn’t much use during World War II. Probably that’s not so much because Roosevelt cherished civil rights but simply that World War II wasn’t very controversial.

In the following decades, the law was mostly used for Soviet spies, with little controversy. This included e.g. the Rosenbergs, who provided the Soviets with many top-secret weapons designs. But the law on the books remained broad. Prosecutors just didn’t charge anyone except people who did “espionage” as that word is defined in English.

The Pentagon Papers trials are widely misunderstood.

In the midst of the Vietnam war in 1967, Secretary of Defense Robert McNamara ordered an encyclopedic study of the US involvement in Vietnam. In 1971, two analysts at the RAND corporation who worked on the report, Daniel Ellsberg and Tony Russo, leaked it to the New York Times and Washington Post. The Nixon administration sought an injunction to prevent the papers from publishing the report and charged Ellsberg and Russo with espionage.

This was not the victory for free speech that people think it was. The newspapers won at the Supreme Court, yes, but the ruling was only against “prior restraint”—meaning the government couldn’t stop them from publishing. That didn’t mean that publishing it was actually legal. The government could have still charged them with crimes after the fact, it just declined to do so.

The espionage charges against Ellsberg and Russo were a separate trial. While they were not convicted, they were not found innocent either. There was no ruling because illegal wiretapping was uncovered, which led to a mistrial. So there was no precedent that you can do what they did without being guilty of espionage.

For decades after the Pentagon Papers, the government used the act with restraint—for actual spying. No journalists or whistleblowers were charged, and the limits of the law were never tested at the Supreme Court. But this was basically a handshake deal between the government and journalists. Something like: “We (the government) won’t charge you (the journalists) with espionage, as long as you’re careful about what you publish (no names of CIA spies) and don’t take us to court to reduce the scope of our theoretical powers.”

For a while, this seemed like a stable equilibrium. But it was never a legal one.

How Assange got here

While the Pentagon Papers were being published in 1971, what else was going on in the world? Britain abandoned pence and shilling. The Yamasuki Singers released Le Monde Fabuleux Des Yamasuki. And Julian Assange was born in northeast Australia.

Assange had a chaotic early life.

His mother seems to be something of a free spirit. She constantly moved the family and feared that traditional schooling might “break his spirit”, meaning he was educated through a mixture of correspondence courses and homeschooling.

As a teenager, his spirit was sufficiently unbroken for him to become involved in high-level grey-hat hacking. From the beginning, he was very good and operated according to a rebellious but vaguely altruistic moral code. He’s suspected in a 1989 worm that made NASA computers say Your System Has Been Officially WANKed, but didn’t otherwise hurt anything.

His hijincks eventually caught the attention of police and in 1994 was charged with 31 crimes. Facing a likely jail sentence, he became depressed, checked himself into a mental hospital, and apparently spent months living in the woods outside Melbourne. But in the end, the judge considered his wild childhood and seeming lack of malice and let him off with a fine. During the rest of his 20s and early 30s he posted on various subversive computer security forums, ran an internet service provider, and did corporate consulting.

It’s unclear if Assange was a founder or the founder of WikiLeaks.

WikiLeaks was founded in 2006. While Assange was always the public face, Wikileaks initially made a point of portraying itself as a group. But the board never met and many people listed on it complained that they never did anything and sometimes didn’t even know they were on it.

In the first years, WikiLeaks’ leaks were fairly modest. It published documents on killings in Kenya and Somalia, a list of the members of the British National Party, and Sarah Palin’s emails. At some point, some smartass submitted a list of WikiLeaks’ own donors as a kind of test of WikiLeaks’ principles. They published it.

In 2010 WikiLeaks published four of the largest leaks in US history.

Those early leaks attracted the attention of Chelsea Manning, an intelligence analyst for the US Army stationed in Iraq. Manning wanted “to show the true cost of war” and provided Assange with huge amounts of classified information. Based on this, WikiLeaks published 1) footage of a 2007 Baghdad airstrike in which the US killed 18 people including unarmed civilian journalists, 2) a collection of 75k internal US military logs from the war in Afghanistan, 3) a collection of 390k US Army field reports from the Iraq war, documenting 66k civilian deaths, and 4) 40 years of diplomatic cables, revealing tensions with allies and the US spying on the UN. These leaks greatly embarrassed the US and made Assange a global celebrity.

In August of 2010, Assange was in Sweden when two women accused him of sexually exceeding the scope of their consent.

The lurid details aren’t appropriate for a family website, but a few weeks after he was accused, Assange fled Sweden for the UK to avoid being arrested and charged with molestation and rape. Sweden sought to have Assange extradited from the UK and a long legal battle began.

Assange said he wasn’t worried about the allegations, but he feared that going to Sweden could lead to him being sent for trial in the US. (Though the US had made no charges at the time.) By 2012, Assange had exhausted every possible appeal and to avoid being sent to Sweden, he took refuge in the Ecuadorian embassy in London.

Eventually, Ecuador soured on Assange.

Assange seems to have been an annoying guest. He damaged the halls by skateboarding, didn’t always cleaning up after his cat, and maybe compromised the embassy’s internal systems. Either because of all that, because of US pressure, because Ecuador got a new president, or because Assange leaked a photo of that president in bed with lobster as an attempt at counter-pressure, he eventually became unwelcome.

Since 2019, Assange has been fighting extradition to the US.

In April of 2019, London police were invited into the embassy, after which they arrested Assange and carried him out of the building screaming. By this time, Sweden had dropped its investigation so in theory, his only legal problem was a UK charge for jumping bail back in 2012. But the US then unsealed a secret indictment from 2018 for conspiracy (with Manning) to commit computer intrusion and began proceedings to extradite Assange to the US. In May of 2019, it added 17 espionage charges. Extradition hearing continue to this day.

Interlude

Our topic is espionage and I don’t want to get distracted. But it feels wrong to not mention this at all: The allegations in Sweden were not a US plot. You can debate if paranoia was reasonable, but the reason Sweden wanted to arrest Assange is that two women reported behavior that, if true, may have been a crime. (See the appendix for more details.)

Why the US charged Assange

The big leaks happened in 2010, but the US didn’t bring any charges until 2018. Why?

Obama began using the Espionage Act more aggressively.

Recall that in the decades after the Pentagon Papers trial in 1971, the government used the Espionage Act conservatively. There were no prosecutions of leakers or whistleblowers, only “spies”. This changed after Obama became president in 2009. He charged numerous people who leaked information to journalists with espionage, including:

• Jeffery Sterling for leaking information about the CIA’s spy war with Iran.

• Thomas Drake for leaking the NSA’s trailblazer project.

• Shamai Leibowitz for leaking five FBI documents.

• Stephen Kim for leaking that the US knew North Korea was planning a nuclear bomb test.

• John Kiriakou for leaking CIA torture of Abu Zubaydah.

• Chelsea Manning for things you already know about.

• Edward Snowden for things you already know about.

Why did Obama do this? He gives a simple answer—because he thought it was right.

[Leaks] can put men and women in uniform that I’ve sent into the battlefield at risk. They can put some of our intelligence officers, who are in various, dangerous situations that are easily compromised, at risk. … So I make no apologies.

I see no reason to doubt his sincerity. He decided he wanted leaking to be espionage and—poof—leaking was espionage. No change of law was needed because the old law always covered leaking (and more). All he had to do was start prosecuting people.

Obama seriously considered charging Assange, but decided not to.

The Obama administration spent a long time considering if Assange was guilty of computer hacking or conspiracy. The investigation was mostly secret, but some glimpses suggest it bordered on obsession—e.g. in 2011, the FBI lied to Iceland about a fake imminent cyberattack so they could get information on Assange.

Conspiracy charges seem to have been a close thing. Apparently, Manning asked Assange if he had any experience cracking hashes, and Assange pointed out that rainbow tables were useful. At another point, Manning said that he had nothing else to share and Assange replied, “curious eyes never run dry in my experience.” (I assume he wrote that because he feared that saying “No—go steal more classified documents and give them to me” might get him into trouble.)

Does that count as conspiracy? If so, it would be kind of a weird technicality. They decided not to pursue it.

They also considered charging Assange with espionage. Of course, as the law is written, Assange definitely did espionage. But the same is true for government officials and journalists who leak and publish stuff all the time, often on orders of the president.

Ultimately, Obama seems to have decided that he was OK with charging leakers with espionage, he wasn’t OK with charging journalists. And he seems to have concluded that Assange was close enough to being a journalist that charging him would set a dangerous precedent. During Obama’s presidency, the New York Times flat-out said, “Mr. Assange […] could not be charged with espionage.”

Trump simply felt differently.

So how did Trump charge him?

Easy: He decided to. The law as written always applied to Assange because (have I mentioned this?) the law as written is stupidly broad. So just like Obama was free to decide that leaking now counts as espionage, Trump was free to decide that whatever Assange did qualifies. Where Obama was concerned about bad precedents and intrusions on freedom of speech, Trump was free to not be as concerned about those things.

Biden doesn’t want to talk about it.

Biden became president in 2021 and inherited the case from Trump. He could drop the charges, but he hasn’t. I can’t find any quotes from him explaining why he’s reversed policies from the ones he supported as Vice President under Obama. Instead, we just get quotes from the Justice Department like, “I can confirm we are continuing our efforts to seek the extradition of Julian Assange.”

Formally, maybe these decisions are made by the Attorney General. But the Attorney General serves at the pleasure of the president.

What I think

So what to make of all this? (Warning: Here I’ll drop my pretension of neutrality.)

There’s a strong case that WikiLeaks did some social good.

If US helicopter gun crews laugh while killing unarmed civilians, it seems good that the world learns about this. The same holds if the US military has records of tens of thousands of extra civilian deaths in Iraq or if the Democratic National Committee tries to deny Bernie Sanders the presidential nomination or the US and UK bug the office of the UN secretary-general. Not everyone agrees about all this, but most do.

But I don’t buy Assange’s pretension to neutrality.

Here’s the truth about the famous 2007 Baghdad airstrike, as far as I can tell: American troops were active in the area and earlier in the day had taken fire from insurgents near the site of the strike. The helicopter crews thought they saw people carrying weapons and decided to kill everyone as a kind of “precaution”. And they had a casual enough attitude about human life to laugh while doing it.

This seems bad. But why did WikiLeaks call the video Collateral Murder? Why did WikiLeaks edit the video to add arrows pointing out the cameras some men were carrying, but provide no arrows for what Assange himself later conceded were an AK-47 and an RPG?

In 2016, Assange almost certainly received various documents from Russian intelligence agencies that were designed to deny Hillary Clinton the presidency. To this day he denies that these documents came from Russia. As far as I can tell, he’s just lying. But either way—why did he release some of these documents right before the Democratic National Convention and the rest two days before the general election? Do we seriously think that wasn’t an attempt to hurt Clinton?

And he was often completely irresponsible.

The war logs from Afghanistan and Iraq included the full names of thousands of local collaborators. WikiLeaks published them in 2010 anyway, with the names included. This was fiercely criticized at the time by groups like Amnesty International. The Taliban said they were going through the documents for names. Assange protested that WikiLeaks didn’t have the resources to go through tens of thousands of documents, and that if Amnesty International was so concerned, they should provide staff to help redact the names. When Amnesty International said OK, we will provide some staff, let’s have a call to coordinate, Assange changed his mind and said, “I’m very busy and have no time to deal with people who prefer to do nothing but cover their asses.”

Before they were public, Assange also gave the US diplomatic cables to Israel Shamir, an anti-Semite who promptly handed them over to Belarus’ dictator, Alexander Lukashenko. When other members of WikiLeaks discovered this and wanted to investigate, Assange blocked it and claimed it never happened.

When WikiLeaks leaked emails from the Democratic National Committee in 2016, they included the names of donors along with social security and credit card numbers.

Here’s a quote:

I carefully evaluated every single document I disclosed to ensure that each was legitimately in the public interest. There are all sorts of documents that would have made a big impact that I didn’t turn over.

That’s from Edward Snowden. When he did his leak in 2013 he checked everything himself. Then he researched journalists to see who had a track record of responsible redaction and sent the documents to them for a second pass.

Julian Assange is no Edward Snowden. That’s probably why Snowden didn’t give Assange anything.

Aside: I’d like to hold up Snowden as an example of leaking done right. But it seems that by 2015, China and Russia had access to basically his entire cache of 1 million documents. It’s not clear how this happened and Snowden insists that he destroyed his own access before he left Hong Kong for Russia. They might have been intercepted or turned over by journalists that were given the documents by Snowden.

So I find Assange quite distasteful.

I’ll just admit it: Having done all this research, I’m not left with much regard for Assange as a human being. His main goal seems to be to attract attention for himself. He professes high principles but operates according to a nebulous, flexible morality that he’s happy to twist whenever it benefits him. He has repeatedly lied to the public and his history of publishing leaks without redacting information that hurts innocent people for zero public benefit is just pathetic. It’s not for me to judge what actually happened in Sweden in 2010, but I can judge the statements he made stoking conspiracy theories that they were CIA agents. (They weren’t.)

But, of course, he hasn’t been charged under the Scumbag Act.

The Espionage Act is far too powerful.

The Espionage Act has been around for almost a hundred years now. But it can’t actually be constitutional for it to be a crime to do anything with any information that’s relevant to national security, can it?

For a few decades, there was a little detente where this insane law was left on the books but the government tacitly agreed to only use a tiny fraction of its theoretical powers. We now see why this was dangerous: When you have a law that makes everything illegal, prosecutors can charge whoever they want, and the trend lately seems to be to charge ever-more people for an ever-widening variety of behavior. There should be a clear line between whistleblowing and espionage, and that requires fixing the law.

But how to fix the Espionage Act isn’t obvious.

Most people seem to oppose prosecuting “whistleblowers” or “journalists”. But what are those things?

One idea would be to protecting leakers who expose that the government is breaking the law. This seems reasonable, but the details are tricky. How severe does the illegal behavior be? How related do the documents need to be? If I find the nuclear codes printed on memo that also shows that Secretary of the Interior Deb Haaland is looting the Interior, then can I leak the whole document?

Should there be some consideration of the public—the “good” that leaks do? Who defines that? (Currently, people charged with espionage aren’t even allowed to mention the public good at trial.) If we protect journalists, then who is a journalist? Am I a journalist? Should the law insist that people are “responsible” about redaction? Who decides what’s responsible?

I don’t have any particular answers. I’m just pointing out that if you accept that (1) some information needs to be kept secret, and (2) sometimes people should be allowed to leak stuff, then drawing the line is not easy. And the current strategy of, “make everything illegal and leave it up to the president” seems dangerous.

Assange is not ideal for testing the Espionage Act.

It seems quite possible that Assange will be extradited to the US that the case will make it to the Supreme Court. If this happens, then the constitutionality of the Espionage Act will finally be tested. I worry about this, because I don’t think Assange is very sympathetic, meaning I worry that this doesn’t give the best odds that the law is clarified in the best way.

I also worry about a big splashy trial for another reason. Even if the Supreme Court makes the best decisions, its powers are limited. The “correct” way to fix the Espionage Act is for Congress to repeal and replace it. But the way the US works these days is that after some issue becomes prominent, it becomes polarized, and then half the population ends up in favor and half opposed, and those positions calcify, and all progress becomes impossible for decades. I don’t think this has happened yet for espionage, meaning there’s still some chance Congress might decide to quietly fix it. Once the big show starts, that becomes less likely.

On the other hand, can you think of a different prominent person who was recently charged with espionage?